An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
NORTH CAROLINA COURT OF APPEALS
Filed: 20 December 2005
IN THE MATTER OF:
C.L., Jr., C.L. and C.L. Nos. 03 J 132-34
Appeal by respondent-father from orders entered 4 August 2004
by Judge Resson Faircloth in Johnston County District Court. Heard
in the Court of Appeals 21 September 2005.
Holland & O'Connor, by Jennifer S. O'Connor for Johnston
County Department of Social Services petitioner appellee; and
Attorney Advocate James D. Johnson, Jr., Guardian ad Litem.
Duncan B. McCormick for respondent-father appellant.
Respondent-father appeals from a juvenile adjudication order,
a juvenile disposition order, and a juvenile permanency planning
order. We affirm all of the challenged orders.
Respondent-father has three minor children, all of whom have
the initials C.L., and who are hereinafter referred to as the
children when referred to collectively. Much of the instant
appeal focuses upon findings concerning respondent's daughter, who
is hereinafter referred to as the child or the daughter.
On 7 April 2003 the child's mother took her to Clayton Urgent
Care as a result of greenish discharge on the child's undergarments
and complaints of pain while urinating. The child was examined bya physician's assistant, who observed the discharge and obtained
cultures. Laboratory tests indicated that the child had gonorrhea.
Respondent-father and the child's mother were advised to be tested
for gonorrhea, and both tested positive. The child, who was three
years of age at the time, informed her maternal grandmother that
respondent-father had put his fingers inside of her, and told a
mental health professional that respondent-father had hurt her.
Respondent-father was charged with first-degree sexual offense in
relation to the child contracting gonorrhea.
In August 2003, the Johnston County Department of Social
Services (DSS) filed juvenile petitions alleging that the daughter
was sexually abused and that all three of respondent-father's
children were neglected and dependent. The trial court conducted an
adjudication hearing on 3 September 2003, at which time respondent-
father requested that adjudication against him be continued until
his criminal case was resolved. The mother of the children
consented to the adjudication of neglect and dependency. A
disposition order placed the children in the custody of their
maternal grandmother. The court also relieved DSS of further
efforts towards reunification with the mother. On 24 September
2003, the trial court held a permanency planning hearing, after
which the court entered a permanency planning order appointing the
maternal grandmother, with whom the children had resided since
April 2003, as the guardian of the person of the minor children.
With regard to the criminal case against him, respondent-
father pled guilty to the lesser charge of contributing to thedelinquency of a minor on 8 April 2004. He was sentenced to two
years' probation and instructed not to have any contact with the
minor children. In addition, due to an unrelated probation
violation respondent-father was incarcerated from April 2003 until
On 7 July 2004, the trial court held hearings on the original
juvenile petitions filed against respondent-father. In an
adjudication order entered 4 August 2004, the trial court made,
inter alia, the following findings of fact:
10. No individuals[,] other than the primary
caregivers, have had unsupervised contact with the minor
child or access. While the mother is the primary
caregiver, she has not allowed any individual to be
unsupervised with the children or access . . . . The
mother did not have any digital/vaginal contact with the
minor child. The court finds that the father . . . is
the only individual to have had access to the minor
11. The court finds by clear cogent and convincing
evidence, based upon the disclosure of the child that her
father had hurt her and put his fingers inside of her[,]
and further that the father, who was positive for
gonorrhea, was the only individual to have had access to
the minor child other than the mother, that the minor
child . . . was sexually abused by her father . . .
pursuant to [N.C. Gen. Stat. §] 7B-101(1).
The court concluded that the child was within the jurisdiction of
the court as an abused, neglected, and dependent juvenile. In a
disposition order entered on the same date, the trial court found
that it would be contrary to the children's health and welfare to
return to the care, custody, and control of respondent-father and
that it would be in the children's best interest to remain in the
custody of their maternal grandmother. The court relieved DSS offurther efforts to reunify respondent-father with his children. In
a permanency planning order, which was also signed on 4 August
2004, the court ruled that further efforts to reunite respondent-
father with his children would be futile because of the aggravating
circumstance of sexual abuse and because respondent-father was
hesitant to develop a family services case plan with DSS and was
late to begin work on the case plan. Accordingly, the permanency
planning order required reunification efforts to cease.
From the adjudication order, the disposition order, and the
permanency planning order, respondent-father now appeals.
STANDARD OF REVIEW
In juvenile cases, as in all cases, this Court's standard of
review is whether there is evidentiary support for the trial
court's findings and whether the trial court's conclusions are
supported by its findings and applicable law. See In re D.J.D., __
N.C. App. __, __, 615 S.E.2d 26, 32 (2005). The evidentiary
support required for a juvenile adjudication order is clear and
convincing evidence, and this Court must test properly challenged
findings by the trial court against this standard. See N.C. Gen.
Stat. § 7B-805 (2003); In re Allen, 58 N.C. App. 322, 325, 293
S.E.2d 607, 609 (1982). Clear and convincing evidence is evidence
which should fully convince. In re Smith, 146 N.C. App. 302, 304,
552 S.E.2d 184, 186 (2001). Even under this heightened standard,
[t]he trial judge determines the weight to be given the testimony
and the reasonable inferences to be drawn therefrom. In re
Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985). Upon anadjudication of abuse, neglect, or dependency and an appropriate
determination of the best interests of the child, the dispositional
alternatives are left within the discretion of the trial court, and
are not reversible absent an abuse of discretion. See N.C. Gen.
Stat. § 7B-903 (2003). This Court reviews a permanency planning
order for whether the findings required by statute have been made,
whether the findings and the law support the trial court's
conclusions, and whether the trial court has abused its discretion
with respect to dispositional issues. See N.C. Gen. Stat. § 7B-907
In his first set of arguments on appeal, respondent-father
challenges the trial court's determinations concerning sexual
abuse. Specifically, he contends that (A) the trial court's
determination is based upon an erroneous finding that he was the
only individual, apart from the mother, to have unsupervised
contact with his daughter, and (B) that the evidence at the hearing
did not support findings and conclusions of sexual abuse by
respondent-father. These contentions lack merit.
With respect to the finding as to unsupervised contact,
respondent-father argues that this finding of fact is erroneous
because the mother testified that the children had spent a weekend
at her sister's house sometime in February 2003, and it was not
clear who had access to the child during this visit. However, the
evidence presented to the trial court tended to show that the childcould not have contracted gonorrhea in February 2003.
Dr. Vivian Everett, an expert in pediatrics and child abuse,
testified that gonorrhea is primarily transmitted through sexual
contact, and the only other way to contract gonorrhea is during the
birth process, which usually presents itself as conjunctivitis long
before the age of three. Dr. Everett further testified that the
incubation period for showing signs of gonorrhea, such as vaginal
discharge, is typically from two to seven days from the initial
The mother testified she first noticed that the daughter had
vaginal discharge two days prior to taking the child for a medical
examination. On 7 April 2003 the daughter was examined at Clayton
Urgent Care & Family Clinic where the presence of vaginal discharge
was observed. Laboratory tests determined that the daughter had
contracted gonorrhea. The mother indicated that apart from the one
weekend in February 2003 when the children stayed with their aunt
the only individuals who had unsupervised contact with the daughter
during that time period were her and respondent-father. The mother
testified that she never had sexual contact with the daughter.
Accordingly, the clear, cogent, and convincing evidence
presented to the trial court tended to show that the child would
not have contracted gonorrhea during her weekend stay with her aunt
in February 2003 and that respondent-father, who himself had
gonorrhea, was the only person, other than the mother, who had
unsupervised contact with the child during the five-day period
during which she most likely contracted this sexually transmitteddisease. Thus, the challenged finding with respect to unsupervised
contact must be affirmed.
Likewise, the trial court's conclusion with respect to sexual
abuse is amply supported by the evidence. In addition to the
circumstances discussed above, the child indicated that respondent-
father had put his fingers inside of her and had hurt her, and
respondent-father pled guilty to committing a sexual crime against
his daughter. Thus, the trial court's conclusion that respondent-
father sexually abused his daughter must be affirmed.
The corresponding assignments of error are overruled.
Respondent-father next contends that the trial court erred by
making blanket findings of fact incorporating [DSS] court reports
in its disposition and permanency planning review orders. As
respondent-father properly notes, this Court has held that a
cursory two page order [that] . . . did not incorporate any prior
orders or findings of fact from those orders [and] . . . [i]nstead
. . . incorporated a court report from DSS and a mental health
report . . . as a finding of fact failed to make sufficient
findings to permit meaningful appellate review. In re J.S., 165
N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004). However, the
present case is significantly different in that, although the trial
court incorporated DSS reports, the court also made its own
findings concerning respondent-father's unresponsive attitude
towards developing and acting upon a family case plan, respondent-father's sexual abuse of his daughter, and the success of the
children's placement with the maternal grandmother.
In juvenile proceedings, it is permissible for trial courts
to consider all written reports and materials submitted in
connection with those proceedings. Id.; N.C. Gen. Stat. § 7B-
907(b) (2003). Further, the trial court's decision to incorporate
such materials into its order is not fatal to the order so long as
the court has not simply 'recite[d] allegations,' and has instead
[gone] through 'processes of logical reasoning from the
evidentiary facts' [and] f[ound] the ultimate facts essential to
support the conclusions of law. In re Harton, 156 N.C. App. 655,
660, 577 S.E.2d 334, 337 (2003).
In the instant case, the trial court's findings were
sufficient on their own, and we decline to reverse merely because
the trial court also incorporated DSS reports into its orders. The
corresponding assignments of error are overruled.
Respondent-father next contends that the trial court erred by
relieving DSS of further efforts to reunify him with his children.
Specifically, respondent-father challenges: (A) the trial court's
finding that he had not been receptive to developing a family case
plan, and (B) the propriety of the trial court's ruling that DSS
should be relieved of further reunification efforts. These
contentions lack merit.
With respect to respondent-father's receptivity to developing
a family case plan, the evidence tended to show that, despite his
awareness of DSS's involvement in the case, respondent-father did
not contact DSS until 17 June 2004, shortly before a scheduled
hearing. Further, although DSS was finally able to discuss and
develop a family services case plan with respondent-father on 17
June 2004, he was still hesitant to initiate services despite the
insistence and flexibility exerted by the social worker handling
his case and the numerous rehabilitative and educational
requirements he still had to undertake. For example, respondent-
father did not make efforts in furtherance of his case plan goals
until just before the adjudicatory hearing, was initially unwilling
to permit DSS to visit him in his home to develop a case plan, and
told a DSS social worker to call before making a scheduled home
visit because he might not be there. Thus, the finding that
respondent-father had not been receptive to developing a family
case plan must be affirmed.
Section 7B-507(b) of the General Statutes provides that a
trial court may direct reunification efforts to cease where, inter
(1) Such efforts clearly would be futile or
would be inconsistent with the juvenile's
health, safety, and need for a safe,
permanent home within a reasonable period
(2) A court of competent jurisdiction hasdetermined that the parent has subjected
the child to aggravated circumstances as
defined in G.S. 7B-101.
N.C. Gen. Stat. § 7B-507(b) (2003). With respect to subsection
(1), this Court has held that a trial court may relieve DSS of
further efforts towards reunification when the child has been
placed outside of the home for fifteen of the preceding twenty-two
months. In re Dula, 143 N.C. App. 16, 19, 544 S.E.2d 591, 593-94,
aff'd, 354 N.C. 356, 554 S.E.2d 336 (2001). Further, the
aggravated circumstances referred to in subsection (2) are
further defined to include sexual abuse. N.C. Gen. Stat. § 7B-
In the instant case, respondent-father's children had been
residing with their maternal grandmother for more than fourteen
months. Moreover, the trial court had already found, based on clear
and convincing evidence, that respondent-father had sexually abused
the daughter. As such, we discern no error in the trial court's
decision to relieve DSS of further efforts to reunify respondent-
father with his children.
The corresponding assignments of error are overruled.
We have carefully reviewed the remaining assignments of error
brought forward in respondent's brief and have concluded that they
lack merit. They are, therefore, overruled.
The trial court's orders are
Judges McGEE and JACKSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***